Ferreira v. Secretary, Department of Corrections , 183 F. App'x 885 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 8, 2006
No. 04-15761 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00859-CV-ORL-19KRS
ANTHONY FERREIRA,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 8, 2006)
Before BLACK, PRYOR and COX, Circuit Judges.
PER CURIAM:
Appellant Anthony Ferreira appeals the district court’s dismissal of his
application for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254, as
time-barred under the one-year statute of limitations contained in the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1). We
granted a certificate of appealability as to the following issue:
Whether the district court properly found that a habeas corpus
petitioner who was resentenced and who only challenged the original
trial proceedings without raising any challenge based on resentencing
procedures is not entitled to the benefit of a new statute of limitations
period commencing from the date the resentencing judgment became
final?
Because this appeal is controlled by our decision in Rainey v. Sec’y for the
Dep’t of Corr., 443 F.3d 1323 (11th Cir. 2006), we affirm the district court’s order.
The primary issue in this case is whether the limitations period on Ferreira’s
habeas petition, which challenged only his judgment of conviction and not his
resentencing judgment, began on the date Ferreira’s judgment of conviction
became final or the date his resentencing judgment became final. While this
appeal was pending, we issued our opinion in Rainey, which decided this very
question. We therefore ordered the parties to submit supplemental briefing as to
Rainey’s effect on this case.
After reviewing the record, the parties’ briefs, and the supplemental briefing,
we find this case to be directly controlled by our decision in Rainey. In Rainey, we
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held “the latest possible triggering date for a petition challenging only the original
judgment of conviction is the date on which that judgment became final.” 443
F.3d at 1328. Because Ferreira’s habeas petition challenged only his judgment of
conviction, without raising any challenge to his resentencing judgment, the
AEDPA’s one-year statute of limitations began when his judgment of conviction
became final. Measuring the limitations period from that date, Ferreira’s habeas
petition was untimely.
The Supreme Court of Florida denied review of Ferreira’s direct appeal of
his judgment of conviction on September 11, 1997. Ferreira then had 90 days, or
until December 10, 1997, to petition the United States Supreme Court for a writ of
certiorari. See Sup. Ct. R. 13.1. Thus, for purposes of the AEDPA, Ferreira’s
judgment of conviction became final on December 10, 1997. See 28 U.S.C.
§ 2244(d)(1)(A); Bond v. Moore, 309 F.3d 770, 773-74 (11th Cir. 2002).1
On August 18, 1998, 251 days after the limitations period on his habeas
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In his supplemental brief, Ferreira asserts the state court clerk’s re-recording of his
judgment of conviction on July 22, 2002, affected the finality of his judgment of conviction and,
therefore, the date the limitations period on his habeas petition began. We disagree. As 28
U.S.C. § 2244(d)(1)(A) makes clear, the finality of a judgment is not determined by the date of
its recording; rather, a judgment becomes final “by the conclusion of direct review or the
expiration of the time for seeking such review.” The Florida Supreme Court denied review of
Ferreira’s direct appeal on September 11, 1997, and Ferreira had 90 days, or until December 10,
1997, to petition the United States Supreme Court for a writ of certiorari. See Sup. Ct. R. 13.
Thus, Ferreira’s judgment of conviction became final on December 10, 1997, irrespective of
when it was recorded or re-recorded. See Bond, 309 F.3d at 773-74.
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petition began, Ferreira filed a post-conviction motion in state court under Florida
Rule of Criminal Procedure 3.850. Under our current jurisprudence, this motion
tolled the limitations period until February 8, 2002, when the Florida Fifth District
Court of Appeal issued its mandate affirming the trial court’s order denying relief.
See 28 U.S.C. § 2244(d)(2); see also Lawrence v. Florida, 421 F.3d 1221, 1225
(11th Cir. 2005); Coates v. Byrd, 211 F.3d 1225, 1227 (11th Cir. 2000). At that
time, Ferreira had the 114 days remaining on his limitations period, or until June 2,
2002, to file either a habeas petition or a properly filed state post-conviction
motion. His June 24, 2002, motion under Florida Rule of Criminal Procedure
3.800 did not further toll the statute of limitations. Ferreira’s June 10, 2003,
habeas petition was, therefore, untimely.
In sum, Rainey directs that the one-year statute of limitations on Ferreira’s
habeas petition began on December 10, 1997, the date his judgment of conviction
became final. Measuring the limitations period from that date, and accounting for
statutory tolling, Ferreira’s habeas petition was untimely.
AFFIRMED.
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